PRACTICAL TIPS – FEI DOPING CASES

The article below was published in Horse Times.

In this edition of HT our legal experts discuss some of their thoughts on doping cases. In their daily practice they often represent athletes and horse owners in doping cases, pending for instance, before the FÉDÉRATION EQUESTRE INTERNATIONALE (THE “FEI”). In this article the experts examine the unpredictability of some doping cases.

We illustrate this article with the example of trimacionlone acetonide as the usage of this specific medication very often leads to the violation of doping / controlled medication regulations. For the purpose of this article we refer to these violations as “doping cases”. Cases involving trimacionlone acetonide demonstrate the unpredictability of doping cases.

TRIAMCINOLONE ACETONIDE AND WITHDRAWAL TIMES

Triamcinolone acetonide is a synthetic corticosteroid with anti- inflammatory effects.This medication is very often used to treat joints when a horse is not comfortable and/ or lame. If the treatment is performed correctly in the joint and the athlete observes the advised withdrawal/ detection times, then usually there should not be any complications following such a treatment. For triamcinolone acetonide the FEI advises seven (7) days withdrawal time. This is based on a single joint treatment with 12 mg dosage. The place where the injection was administered can however have significant effects on the withdrawal times and therefore also on the detection of a substance in question. From the American studies with regards to trimacinoloneacetonide it appears that the withdrawal time of seven days can be deemed correct but only under very strict and ideal conditions (the injection performed correctly) like, for instance, at the university equine clinic. In practice, the withdrawal times can be much longer than earlier expected.

The Association of Racing Commissioners International in North America recommends withdrawal times for intra-articular (IA) of seven days for triamcinolone acetonide based on 9 mg dosage. However, the problem is that, as the FEI correctly recognized in its regulations, horses are athletes that cannot speak for themselves. They cannot inform the veterinarian in question whether the needle has been injected properly in the joint and not, for instance, in the muscle. If the latter the case, then the withdrawal times get considerably longer.

TO COMPETE OR NOT COMPETE AFTER A TREATMENT?

Many vets to whom we speak in our daily practice are very reluctant to advise on any withdrawal time when treating sport horses. Various factors may specifically influence the withdrawal times, so you really need to investigate the horse very well. The vet must be familiar with the physiology of the horse in question in order to make a correct assessment on the withdrawal times. It must be mentioned that the FEI recommendations have been based on a very limited number of horses so even though the withdrawal times are officially published they should be treated only as guidelines. Reportedly, there have been cases involving withdrawal times of trimacinolone acetonide being 30 and 40 days. If an athlete wants to compete with the horse after this treatment he should – together with his vet – consider the matter and take a safety margin into account. It is further advisable to well-document the treatment and the decision to be made as – if things go wrong – the athlete can provide evidence to the FEI in possible proceedings.

THINKTWICE BEFORE AGREEING TO “ADMINISTRATIVE TRACK” SETTLEMENT

Athletes sometimes agree to the so- called “administrative track” of the FEI in which they can pay a certain amount for the violation and then go on with competing. This seems tempting at first sight, but in reality only a few athletes realize what the consequences are. If for example you are charged with doping within four years after such admission, then this first violation “settled via the administrative track” will count as first violation and the new violation will be qualified as a second violation. The penalties may be then doubled by the FEI. By three violations within the period of four years the athlete in question has a problem with the FEI. We are not saying that choosing the “administrative track” is not correct, but it always good to consider which options one has in the case at hand. Sometimes, it might be better to enter into a voluntary suspension and sometimes to fight the case.

CONCLUSIONS: GUILTY UNTIL PROVEN OTHERWISE

Contrary to criminal proceedings the doping regulations worldwide assume that the “person responsible” (the term under the FEI jargon for the person accountable for the horse) is guilty until he proves otherwise. It is then up to him to prove otherwise. Talking specifically about the equestrian sport it comes down to the following. The person responsible accused of the violation needs to demonstrate that he can explain how a specific medication got into the horse’s system. Stating “I do not know” has no use. Under the doping regulations the strict liability principle applies. After proving how the medication got into the horse’s system, the person responsible has to prove that he did not have “significant fault” or “negligence” in the violation of the doping regulations. The factual circumstances of the specific case are here crucial.

Very important are:

  1. proof of the assessment of the withdrawal time;
  2. not competing during that period (no enhancement of the performance); and
  3. maintenance of veterinary records. The veterinarian who treated the horse must be a person reputable whom the person responsible could reasonably trust and not a random vet. All this together can play a role in the FEI Tribunal’s decision.

FEI_detection_times_lab_2015_2.pdf

Nancy S. Loving. DVM, Corticosteroid clearance following joint injections. See http://www.thehorse.com/articles/35746/corticosteroid-clearance-following-joint-injections

For more information please contact us.

Recent FEI doping case of Schelstraete Equine Lawyers

The defence team consisting of Mr Piotr Wawrzyniak of Schelstraete Equine Lawyers and the co-counsel Ms Lisa Lazarus, Esq. successfully represented a Saudi Olympic Equestrian in controlled medication proceedings before the FEI Tribunal.

The cases involved triamcinolon acetonide usage. Despite the fact that the athlete observed the withdrawal / detection period of the medication as prescribed by the FEI (Click to view document) before re-entering into the competition again, the horse tested positive on triamcinolone acetonide. The case was not the first violation of the athlete.

Thanks to the successful legal argumentation based on the doping case law, the FEI Tribunal found that the degree of fault of the PR is to be considered as small, when viewed in the totality of the circumstances in the case at hand. The Tribunal agreed with the defence team, that the athlete did everything he could have possibly done when selecting the veterinarian treating the horse. In the view of the FEI Tribunal the defence team proved that the athlete was careful when selecting his veterinarian, and he made sure to find someone with expertise and who was recommended also by his usual veterinarian, who was not available to treat the horse at the time.

Like in any doping case, the circumstances are decisive. Good argumentation and a well-thought strategy are decisive. So, if you are confronted with a sanction coming from the FEI or another doping authority and you have doubts about your legal position. Then please contact us. Before doing anything, obtain legal advice and remember: you can’t unscramble scrambled eggs.

Positive drugtest caused by Luzerne?!

An interesting statement was recently placed on the website of the BHA (www. Britishhorseracing.com): ‘Regarding the finding of the Disciplinary Panel that seven horses which were found to have tested positive for morphine and oripavine should be disqualified from their respective races, but no action be taken against the trainers involved.

Jamie Stier, Director of Raceday Operations and Regulation for the British Horseracing Authority (BHA), said: “It was BHA’s position in the hearing that the source of the positive samples for morphine and oripavine was a contaminated batch of feed and that in the circumstances the trainers took all reasonable precautions to avoid breaching the Rules of Racing. As such BHA submitted that no penalty should be imposed on the trainers, however, in accordance with the Rules of Racing, the horses involved should be disqualified from the relevant races. The Disciplinary Panel today agreed this position.

“The Rules are clear on the matter of disqualification. Once a horse has been found to have had a prohibited substance in its system on raceday then disqualification of the horse must be the result. The administration of the substance was accidental and no fault of those connected to the horse but, while it is unfortunate for those involved, no other approach would be acceptable when the cornerstone of our policy is ensuring a level playing field for all participants.

“Instances of feed batches becoming contaminated are, thankfully, very rare. It has been an unfortunate situation for those involved, especially the connections of all the horses affected. BHA has worked with the trainers and NTF throughout, as well as the feed manufacturers and their representative body the British Equine Trade Association (BETA) to control and manage the consequences of this contamination as best as possible.” ’

At this very moment several FEI cases are pending in which horses were tested positive for Morphine and Oripavine. As soon as the outcome of these cases is known we will post an update on our website www.europeanequinelawyers.com. Horse owners all over the world should be aware of this issue so they can take the necessary precautions.

Rider gets compensated for eventing accident

Organizing committees of Dutch equestrian competitions more than often use exclusions of liability; so-called exemption clauses. By using this, participants declare to agree to these exclusions when they sign up for a competition, so the organizing committee cannot be held liable for any damage that happens to the participant or his horse during the competition.

However, on 20 May 2014, the Court of ‘s-Hertogenbosch, rendered a decision from which it follows that invoking an exemption clause is not always successful; especially not when the organizing committee has failed to comply with applicable national and international regulations of the Royal Dutch Equestrian Federation (hereinafter called ‘KNHS’) and the Fédération Equestre Internationale (hereinafter called ‘FEI’).

The case was as follows:

Organizing committee X organized an eventing competition back in October 2010 under the auspices of the KNHS. An eventing competition consists of (1) a dressage test, (2) a show jumping class and (3) a cross-country. The cross-country takes place in a natural environment, such as forests and meadows. During a predetermined route rider and horse must jump various obstacles such as ramparts, water passages, ditches, structures with tree trunks and such kind of objects; but also so-called mobile obstacles. The cross country was built by very experienced course designer Y who held a KNHS license.

Competitor Z registered for this competition and accepted in this framework among others the applicability of an exemption clause. After competitor Z successfully finished the dressage test and the show jumping class, he started the concluding part of the competition; the cross-country. When riding to the final obstacle, the horse did not jump high enough and it came into contact with the obstacle. As a result of this, Z and his horse both fell. The horse was so badly injured that it had to be euthanized on the spot by a veterinarian and Z suffered injuries to his ribs.

The final obstacle was a so-called mobile obstacle in the form of a farm house.

This obstacle was put in place by a tractor and pushed from above into the ground. The obstacle, however, was not propped nor attached to the ground with any anchoring. After the collision with horse and rider, the obstacle tilted in the direction of the horse and rider and fell over.

In the applicable terms it was listed (1) that the competition would be held according to the rules and guidelines for the eventing competitions, held under the auspices of the KNHS, and (2) that the organizing committee, nor any other person concerning the competition, could be held liable or responsible regarding any damage to persons, horses and / or material. Both participants and visitors participated and / or were present at their own risk.

Rider Z started a legal procedure against organizing committee X and course designer Y, in which he claimed compensation for the damage he suffered. Organizing committee X and course designer Y defended themselves by invoking the exemption clause. Both the Court of first instance and the Court of Appeal judged that the exemption clause could not be invoked.

In Dutch law principles of reasonableness and fairness can prevent that one can invoke a contractual term.

Whether these principles are to be applied in a particular case depends, according to existing jurisprudence, on all relevant circumstances of the case, including the nature and the further content of the agreement in which the contractual term appears, the social position and relationship between all parties, the manner in which the contractual is established, the extent to which the other party has been aware of the scope of the contractual term and, with exemption clauses, the degree of fault in relation to the cause of the damage, also in connection with the nature and severity of the involved interests. An exemption clause should remain inapplicable if the damage is caused by intent or conscious recklessness of the party held liable.

In the opinion of the Court of first instance and the Court of Appeal organizing committee X and course designer Y made a serious mistake by not securing the obstacle causing rider Z and his horse to fall down, so that due to the principles of reasonableness and fairness the exemption clause could not be invoked.

The Court of Appeal motivated its decision as follows:

1) According to applicable national and international regulations of the KNHS and FEI, it is of the highest importance that all mobile obstacles will not fall down when touched by rider and horse. Even if from those regulations it cannot be inferred that the obstacle must always be anchored to the ground, the regulations say that knocking down an obstacle must be avoided at all time. This can possibly also be achieved with a sufficiently solid strut but this also was not the case.

2) For the organizing committee X and course designer Y it was not difficult to take precautions, such as anchoring the obstacle to the ground or strutting it with heavy beams.

3) When building loose obstacles, one must take into account that serious injuries and financial losses can be caused.

4) Rider Z did not have to be aware that the obstacle was loose.

5) Besides all above, both organizing committee X and course designer Y were insured against liability.

The Court of first instance sentenced organizing committee X and course designer Y to compensate all damages to the rider Z and the Court of Appeal confirmed this decision during the appeal.

However, this does not mean that organizing committees can never invoke an exemption clause. Every time, all relevant circumstances of the case are decisive. However, if the applicable national and international regulations of the KNHS and the FEI are not respected, then in most cases an organizing committee cannot invoke an exemption clause due to the principles of reasonableness and fairness.

The whole decision can be read on www.rechtspraak.nl and then by searching on: ECLI:NL:GHSHE:2014:1426. For more information about this subject please contact Mr. V. Zitman of Schelstraete Advocaten through email info@schelstraete.nl or +31 13 511 4420.

Is my vet liable for doping?

Question: My horse has tested positive for doping at an international jumping competition. Later it turned out that it was a medicine that my horse got six weeks before this competition. My vet said I could compete again after four weeks, is my vet liable?

Answer Schelstraete:
To hold a veterinarian liable is not easy. This is evident from the jurisprudence of the FEI. It is declared that the rider of the horse is classified as ‘Responsible Person’. As the rider of a horse, you are finally responsible for what the horse is given. Whether this for example is done by bad luck, a mistake by a groom, a veterinarian, etc., the rider is responsible. When you start a procedure for the FEI Tribunal considering that you have relied on the advice of the vet this will not have much effect.

Compensation could possibly be claimed If there is clear evidence that the vet actually said that you could compete again within four weeks. But you will have to have this written down by the vet, otherwise the vet will certainly deny. Besides that, you will also need to prove that the drug always is traceable after six weeks in the blood or urine, or that this happened because of the specific circumstances. In addition, it should be established what damage was suffered by the wrong advice, with the earlier named issues, it makes it hard to discuss the liability of a veterinarian. It is therefore important as a rider, to delve into what is or is not allowed and what is the detection times for the given medicine.